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Response to the Government Consultation on the Leveson Inquiry and Its Implementation

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Response to the Government Consultation on the Leveson Inquiry and Its Implementation Response to the Government Consultation on the Leveson Inquiry and its Implementation Contents Executive Summary ................................................................................................... 2 The commencement of section 40 ............................................................................. 4 Option (a): Government should not commence any of section 40 now, but keep it under review and on the statute book ..................................................................... 4 Option (b): Government should fully commence section 40 now ............................ 5 Option (c): Government should ask Parliament to repeal all of section 40 now ...... 8 Option (d): Government should partially commence section 40, and keep under review those elements that apply to publishers outside a recognised regulator ... 10 Option (e): Government should partially commence section 40, and ask Parliament to repeal those elements that apply to publishers outside a recognised regulator 11 The impact of section 40 .......................................................................................... 13 The impact of section 40 on the press industry .................................................... 13 The impact of section 40 on claimants .................................................................. 19 The purpose of section 40 ........................................................................................ 22 Part 2 of the Leveson Inquiry ................................................................................... 26 Appendix A: The post-Leveson framework ............................................................... 27 IMPRESS Response to Consultation on Leveson Implementation Page 1 of 37 Executive Summary 1. We believe that the Government should commence section 40 of the Crime and Courts Act 2013 in full because: Non-commencement by the Government of all or part of s40 is likely to be unlawful. A decision by the Government to keep all or part of s40 ‘under review’ would expose the Government to a conflict of interests and would compromise the freedom of the press from direct political oversight. IMPRESS and the publishers which have joined IMPRESS had a legitimate expectation that s40 would be commenced in full. Non-commencement or repeal of s40 would be a betrayal of the victims of press abuse and intrusion, who also had a legitimate expectation that the post-Leveson framework would be brought into full effect by the Government. S40 was designed by Parliament as an integral part of the post-Leveson framework for independent and effective regulation of the press and this entire framework is compromised in the absence of s40. The PRP may be jeopardised by the non-commencement or repeal of s40, which in turn may jeopardise the continuing ability of IMPRESS to function as a recognised regulator. So the non-commencement or repeal of s40 may leave IPSO as the only option for publishers, journalists and the public. This would not provide the public with a satisfactory standard of independent and effective press regulation. Nor would it provide the public with access to justice, as IPSO’s pilot arbitration scheme is optional and allows publishers to cherry-pick cases. Non-commencement of s40 would also deprive the public of access to justice through the courts, because of the high cost of litigation. In the absence of competition from IMPRESS, IPSO will be under no pressure to make any meaningful reforms to its governance or operations. We cannot judge s40 or the wider post-Leveson framework until this framework is fully operational. Any industry will inevitably lobby against independent and effective regulation. The Government should not be swayed by this lobbying but should commission an independent longitudinal evaluation of the post- Leveson framework when it is fully operational. 2. We believe that any concerns about s40 are misplaced and that these costs- shifting provisions strike an appropriate balance between the rights of claimants, the rights of publishers and the public interest generally. In particular, we note that s40 has the potential to: IMPRESS Response to Consultation on Leveson Implementation Page 2 of 37 Incentivise independent and effective press regulation. Alleviate the chilling effect of libel threats on investigative journalism. Enhance access to justice for both claimants and defendants in relevant media law cases. 3. We believe that whilst s40 is well-designed to serve its purpose as an incentive for publishers to subscribe to independent and effective regulation, it should not be judged on this basis alone, but should also be judged on the basis of its ability to alleviate the chilling effect of libel threats on investigative journalism and on its ability to enhance access to justice for claimants and defendants in relevant media law claims. It will only be possible to form a valid assessment of s40’s strengths in these respects after the post-Leveson framework has been fully operational for some time. Therefore, we encourage the Government to commence s40 in full and put in place arrangements for an independent and longitudinal evaluation of the post-Leveson framework. IMPRESS Response to Consultation on Leveson Implementation Page 3 of 37 The commencement of section 40 4. Question 1 of the Consultation reads as follows: Which of the following statements do you agree with: (a) Government should not commence any of section 40 now, but keep it under review and on the statute book; (b) Government should fully commence section 40 now; (c) Government should ask Parliament to repeal all of section 40 now; (d) If Government does not fully commence section 40 now, Government should partially commence section 40, and keep under review those elements that apply to publishers outside a recognised regulator; (e) If Government does not fully commence section 40 now, Government should partially commence section 40, and ask Parliament to repeal those elements that apply to publishers outside a recognised regulator. 5. In this section, we assess the merits of each of these options in turn. Option (a): Government should not commence any of section 40 now, but keep it under review and on the statute book 6. Like other measures in the Crime and Courts Act 2013 (‘the Act’), section 40 (‘s40’) requires delegated legislation to be proposed by a minister using powers under s.61(2) of the Act before it comes into force. Ministers have a certain discretion over when to use such powers to introduce delegated legislation of this kind, but not whether to introduce the legislation.1 Any delay in introducing delegated legislation must be for a legally sound reason that does not undermine Parliament’s intention in passing the primary legislation. 7. It may therefore be unlawful for the Government to take an executive decision not to commence section 40 now but instead to keep it ‘under review’, as this would clearly undermine Parliament’s intention in passing the primary legislation. 8. Furthermore, a continuing ‘review’ by the Government of press regulation would constitute an unwarranted interference with press freedom and would expose the Government to the risk of a real or perceived conflict of interests in its dealings with the press. For instance, the Government might be thought to receive positive coverage in return for continuing non-commencement of s40; or might be thought to be threatened with negative coverage in return for its commencement. The lack of clarity in this Consultation about the nature of the proposed ‘review’ process only compounds this risk. 1 See R v Secretary of State for the Home Department, Ex parte Fire Brigades Union and Others [1995] 2 A.C. 513 (‘Fire Brigades Union’). IMPRESS Response to Consultation on Leveson Implementation Page 4 of 37 9. A continuing review of s40 would create profound regulatory uncertainty, which would negatively affect self-regulatory bodies for the press, relevant news publishers and the public in general. 10. Any self-regulatory body which has been recognised as independent and effective under the Royal Charter on Self-Regulation of the Press (‘the Charter’) would be particularly seriously affected. A body such as IMPRESS was established and sought recognition with the legitimate expectation that s40 would be commenced in full. 11. Likewise, any publishers which chose to subscribe to such a body would also be seriously affected. They, too, had a legitimate expectation that s40 would be commenced in full at such time as IMPRESS achieved recognition under the Charter, and made a financial and contractual commitment to IMPRESS on this basis. Option (b): Government should fully commence section 40 now 12. Parliament anticipated that the provisions set out in s40 would form part of a coherent regulatory framework alongside related provisions in the Charter and section 96 of the Enterprise and Regulatory Reform Act 2013. Together, these provisions constitute the post-Leveson framework for independent self-regulation of the press, which was designed by the Government in dialogue with the Opposition, the newspaper industry and other stakeholders, in response to the Leveson recommendations (See Appendix A, below). The Government is still formally committed to this framework, and has not included any questions about other elements of the framework in this consultation. 13. In a speech to the Society of Editors on 19 October 2015, the then Secretary of State for Culture, Media and Sport, Rt. Hon John Whittingdale MP, confirmed
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